Rajani Thabah vs State of Meghalaya and Others

D. Biswas, J.—In this writ petition the question which calls for adjudication is whether the nomination obtained for admission in M.B.B.S. course by practising fraud could be recalled after a period of 4 years without affording an opportunity of hearing?

The Petitioner Miss Rajani Thabah passed the Matriculation Examination in the year 1992 from the Meghalaya Board of School Education and qualified in the Pre-University (Science) in February, 1994 from the North Eastern Hill University securing 2nd Division. Thereafter, in order to improve the marks secured, she had taken admission at the Sardar Patel Intermediate College, Madhunapur, Vaisali in the year 1994, and in 1995 duly passed the I. Sc. examination in 1st Division. The Govt. of Meghalaya, on her application, nominated her for admission to the First Year M.B.B.S. course for the Session 1995-96 at Lady Hardinge Medical College, New Delhi against the seats allotted to the State of Meghalaya. In view of doubt raised by certain quarters regarding veracity of her marksheets, the aforesaid nomination was withheld and confirmation was sought from the Bihar Intermediate Education Council. The Assistant Director of Health Services, Meghalayaalso visited Patna to ascertain the factual position. The Bihar Intermediate Education Council vide their letter dated 8.9.95 confirmed the authenticity of the mark sheets submitted by the Petitioner. The Assistant Director of Health Services also confirmed in his report that the Petitioner had duly qualified at the Intermediate (Science) Examination, 1995 from a College affiliated to the said Council recognised by the Government of Bihar. Report was also collected through the Police. A statement clarifying the position was also made in the floor of the Assembly by the Minister in-charge Health and Family Welfare Department, Meghalaya on 18.9.1995 (Annexure-2). The nomination was thereafter communicated to the Dean of Lady Hardinge Medical College, New Delhi. Accordingly, the Petitioner got herself admitted in the First Year M.B.B.S. Course on 25.9.95. In 1996, a notification was issued by the Bihar Intermediate Education Council, Patna under No. B.I.E.C. 407/SC/96 dated 6.4.96 cancelling the result of the Petitioner bearing Roll Code No. 3330, Roll No. 10052 for the I.Sc Examination, 1995 on the ground that the Petitioner had appeared in the said examination through foulplay, fraudulent means and forgery. Since the representation filed on her behalf yielded no result, the Petitioner challenged the aforesaid notification dated 6.4.96 by preferring a writ application registered as C.W.J.C. No. 4507 of 1996 before the High Court of Judicature at Patna and the said application is awaiting disposal. In the meantime, the Respondents cancelled her nomination vide notification dated 24.6.1996. Aggrieved thereby she has approached this Court praying for a writ in the nature of Mandamus directing the Respondents not to recall the Petitioners'' nomination.

This Court while issuing a notice on 25.6.96 directed the Respondent No. 1 and 2 not to pass any adverse orders affecting her studies at Lady Hardinge Medical College. By the order dated 12.9.96, the learned Single Judge on consideration of the balance of convenience made the order dated 25.6.96 absolute till disposal of this petition. By virtue of the stay order, the Petitioner has been continuing her studies and, according to the learned counsel, as on today she is a student of 4th year, M.B.B.S.

The Respondents in their counter-affidavit denying the averments made in the writ petition maintained that since the result of the writ Petitioner has been cancelled by the Bihar Intermediate Education Council, she is no longer qualified to continue and pursue her M.B.B.S. studies.

There is no denial to the assertion that the Respondents made a thorough enquiry even by deputing responsible officers to Patna and, thereafter, released the letter of nomination. The nomination was made after being satisfied as to the veracity of the mark-sheets. Now, they have recalled the same relying on the notification issued by the B.I.E.C. The said notification reads as follows:

Memo No. B.I.E.C./407/SC/96 Patna Dated 6.4.96

NOTIFICATION

It is notified for information of all concerned that the result of one Rajani Thabha of Meghalaya bearing Roll Code 3330 Roll No. 10052. Enlistment No. RVL-05394/93 who passed the I.Sc 1995 examination from Bihar Intermediate Education Council, Patna is hereby cancelled as after enquiry it has been established that she appeared in the said examination through foul-play, fraudulent means and forgery.

The said notification has been challenged in CWJC No. 4507 of 1996 pending before the Patna High Court. In the instant writ petition neither the said notification has been challenged nor the B.I.E.C. has been made a party. Since the said notification issued by the B.I.E.C. is not in challenge in this case and the said Council is not arrayed as party, it would be difficult for this Court to come to a conclusion about the propriety of the said notification. In fact, the prayers made in this writ petition ought to have been made in the aforesaid writ application pending before the Patna High Court arraying the State of Meghalaya as a party. Although the propriety and validity of the said notification is subjudice before the Patna High Court, the Respondents not being under constraint of any prohibitory order may withdraw the nomination. There appears to be no legal bar in withdrawing the nomination, but the doctrine of proportionality calls for some amount of restraint before the nomination is withdrawn outright. The principles of natural justice require that a notice to show cause be issued to the Petitioner to defend her case since the impugned action by the State Government will totally destroy her career.

In this connection, it would be appropriate to refer to the case of Petitioner''s brother situated alike. In CWJC No. 4807 of 1996, the Patna High Court quashed the notification of cancellation of result of her brother and remitted the matter to the chairman of B.I.E.C. for giving the Petitioner of that case a reasonable opportunity of hearing in order to enable him to justify his case. The judgment was passed by the learned Single Judge relying upon the ratio laid down in S.L. Kapoor Vs. Jagmohan and Others,

Sri A. Sarma, learned senior advocate disapproving the idea of a ''notice to showcase'' submitted that the order of nomination having been obtained by practising fraud and mis-representation, the Petitioner was not entitled to any pre-decisional hearing. In support of his contention, Shri Sarma has quoted the following passage from H. W.R. Wade''s Administrative Law, Fifth Edition, page 228:

Fraud and misrepresentation

An order or determination will not be conclusive if it has been obtained by fraud or misrepresentation. Deaning L.J. once said:

No judgment of a court, no order of a Minister can be allowed to stand if it has been obtained by fraud.

Fraud unreveals everything. In Administrative law, which was not the context of this statement, there is only scanty material to illustrate it, although in principle it ought to be correct. The only field in which there are examples is immigration law, where it is held that leave to enter given by an immigration officer is vitiated if it has been obtained by any kind of fraud, deception or misrepresentation on the part of the immigrant. The House of Lords has gone so far as to hold, in an exceptional decision, that an immigrant has a positive duty to disclose all material facts, even if he is not asked about them, and that if he fails to volunteer relevant information he is guilty of deception and his leave to enter is a nullity.

In addition to the above, Shri Sarma also relied upon a decision of the Apex Court in Vasantkumar Radhakisan Vora Vs. The Board of Trustees of the Port of Bombay, In para-18 of the aforesaid judgment the Supreme Court observed that the doctrine of promissory estoppel, being an equitable doctrine, must yield place to the equity, if larger public interest so requires and if it can be shown by the government or public authority, for having regard to the facts as they have appeared that it would be inequitable to hold the government or public authority to the promise or representation made by it. This observation of the Supreme Court is broadly relatable to the larger public interest and could be resorted to if the facts on record establish beyond any shadow of doubt that fraud had been committed by the Petitioner. In Gurdeep Singh Vs. State of Jammu and Kashmir and others, the Supreme Court crystalised the course to be adopted by the Courts in similar circumstances in the following words:

What remains to be considered is whether the selection of Respondent 6 should be quashed. We are afraid, unduly lenient view of the courts on the basis of human consideration in regard to such exercises on the part of the authorities, has served to create an impression that even where an advantage is secured by stratagem and trickery, it could be rationalised in courts of law. Courts do and should take human and sympathetic view of matter. That is the very essence of justice. But consideration of judicial policy also dictate that a tendency of this kind where advantage gained by illegal means is permitted to be retained will jeopardise the purity of selection process itself; engender cynical disrespect towards the judicial process and in the last analysis embolden errant authorities and candidates into a sense of complacency and impurity that gains achieved by such wrongs could be retained by an appeal to the sympathy of the court....

Wade in the Administrative Law, Fifth Edition under the heading of ''Fair hearings - general aspects'' at page 476 observed as follows:

Where a fair hearing ''would make no difference''

Procedural objections are often raised by unmeritorious parties. Judges may then be tempted to refuse relief on the ground that a fair hearing could have made no difference to the result. But in principle it is vital that the procedure and the merits should be kept strictly apart, since otherwise the merits may be prejudged unfairly. Lord Wright once said:

If the principles of natural justice are violated in respect of any decision it is, indeed, immaterial whether the same decision would have been arrived at in the absence of the departure from the essential principles of justice. The decision must be declared to be no decision.

The dangers were vividly expressed by Megarry J. criticising the contention that ''the result is obvious from the start''

As everybody who has anything to do with the law well knows, the path of the law is strewn with exampels of open and shut cases which, somehow, were not; or unreasonable charges which, in me event, were completely answered, of inexplicable conduct which was fully explained; or fixed and unalterable determinations that, by discussion, suffered a change.

The above observations by Wade speaks of cases where decision may suffer a change if discussions take place. This relates to the cases of exception. The law laid down in Basant Kumar Radha Kishan (supra) and Gurdip Singh (supra) by the Supreme Court disapprove of any lenient view where a gain has been achieved by unlawful means. A court cannot obviously shower sympathy on human consideration in order to herald in a system conducive to the faul designs of errant authorities and candidates frustrating norms of all fairness in the selection process. The law is, therefore, settled. But perhaps, the position is slightly different in this case which may or may not eventually surface as an exception. There are four circumventing factors for which I would like to distinguish this case. Firstly, the Govt. of Meghalaya withheld the nomination on complaint from certain quarters. The officers deputed to Patna submitted report in favour of the Petitioner, and the Council also by a letter confirmed the veracity of the mark-sheets submitted by the Petitioner. Thereafter, the State of Meghalaya being satisfied about the veracity of the mark-sheets, released the nomination. Secondly, the Council suddenly cancelled the result allegedly without hearing the Petitioner and the decision of the Council is now subjudice before the High Court of judicature at Patna. Thirdly, the State ignoring the earlier report and the information received from the Council, straightway acted on the notification cancelling the result without seeking any information as to the nature of fraud, forgery or misrepresentation, and lastly, the decision to recall the nomination was taken without giving any opportunity to the Petitioner to explain her defence. The circumstance above are such that the writ Petitioner cannot be equated with other candidates who achieved advantage through proved misconduct. The nature of fraud, forgery or misrepresentation is not before this Court to take note of. It is not discernable from the notification of the Council as well. Therefore, it cannot be decisively held at this stage that a discussion will not change the situation. The State of Meghalaya has once acted upon the report of its responsible officers and the written information of the Council. In my opinion, a right vis-a-vis a duty has been vested on the State of Meghalaya to know the nature of fraud or forgery committed by the Petitioner before the nomination is recalled. It is more so because the loss caused by this belated notification of the Council is not only to the Petitioner but also to the State, and this has been occasioned by wrong information given by the Council as well.

In the result, the writ petition is disposed of with the direction to the State of Meghalaya to give effect to the impugned notification recalling the nomination of the Petitioner only after issuing a notice to her to show-cause. Till a notice is issued and decision taken, the stay granted by his Court shall continue. It is desired that the State of Meghalaya will dispose of the matter expeditiously, preferably within a period of two months.

No order as to cost.